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Thursday, September 04, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 12 NFP)

For publication opinions today (4):

In Progressive Paloverde Insurance v. Jacob P. Arnold, an 8-page opinion, Judge Robb writes:

This appeal involves a claim for uninsured motorist proceeds by Jacob Arnold against his auto insurer, Progressive Paloverde Insurance (“Progressive”). Progressive brings this interlocutory appeal challenging the trial court’s order denying Progressive’s motion for partial summary judgment. Progressive raises one issue for review: whether the trial court’s denial of partial summary judgment was erroneous. * * *

Concluding Arnold’s insurance policy’s uninsured motorist coverage exclusion does not violate public policy and Progressive is entitled to judgment as a matter of law, we reverse.

In Marq Hall v. State of Indiana, a 32-page, 2-1 opinion, Judge Najam writes:
Marq Hall appeals his conviction for child molesting, as a Class A felony, following a jury trial. He presents three issues for our review, which we consolidate and restate as: 1. Whether the trial court abused its discretion when it excluded certain impeachment evidence at trial. 2. Whether the trial court abused its discretion when it denied his motion to compel discovery. We reverse and remand for a new trial. * * *

The trial court abused its discretion when it excluded from the evidence the phone call between Hall and A.D. regarding M.T.’s credibility after the State opened the door to that evidence. Because the trial court’s error was not harmless, we reverse Hall’s conviction. And because two other issues are likely to recur during a new trial, we also hold that the trial court did not abuse its discretion when it excluded evidence of M.T.’s reputation for untruthfulness in the community, but that the trial court abused its discretion when it denied Hall’s motion to compel A.D. to answer the deposition question regarding M.T.’s prior false accusation of sexual misconduct. Reversed and remanded for a new trial.

BROWN, J., concurs.
VAIDIK, C.J., dissents in part and concurs in part with separate opinion. [which begins at p. 25] I respectfully disagree with the majority’s decision to reverse Hall’s Class A felony child-molesting conviction. First, I agree with the majority that the trial court properly excluded the evidence of M.T.’s reputation for untruthfulness in her community and that the trial court should have granted Hall’s motion to compel A.D. to answer the deposition question about M.T.’s alleged prior false allegation of sexual misconduct with a boy in Kentucky. However, I disagree that the contents of A.D.’s entire phone call with Hall should be admitted. In any event, I believe that any error by the trial court in excluding the phone call was harmless and would therefore affirm Hall’s conviction for Class A felony child molesting.

In Tracey L. Wheeler, Jr. v. State of Indiana, a 9-page opinion, Judge Bailey writes:
Petitioner Tracey L. Wheeler, Jr. (“Wheeler”) appeals the denial of his petition for post-conviction relief, which challenged his convictions for Dealing in Cocaine and Maintaining a Common Nuisance. We affirm.

Wheeler presents the issue of whether he was denied the effective assistance of appellate counsel because appellate counsel declined to allege that Wheeler had been denied his right of self-representation. * * *

Wheeler fails to demonstrate a reasonable probability that the outcome of his direct appeal would have been different had appellate counsel raised a Faretta claim. Wheeler has not shown that he was denied the effective assistance of appellate counsel.

In Lawrence Gyamfi v. State of Indiana is a 15-page, confusing opinion with respect to how the judges line up - who should have become the majority/lead opinion? Judge Riley writes:
Gyamfi raises three issues, one of which we find dispositive and which we restate as: Whether the trial court abused its discretion by admitting certain evidence which was derivative of evidence obtained during an unlawful search and seizure. * * *

Based on the foregoing, we conclude that the trial court abused its discretion by admitting the contested evidence which amounted to fruit of the poisonous tree pursuant to Article 1, Section 11 of the Indiana Constitution. Reversed and remanded.

ROBB, J. concurs and concurs with Bradford, J. concurring in part, concurring in result separate opinion

BRADFORD, J. concurs in part and concurs in result with separate opinion [which begins, at p. 13] I concur with the majority that the trial court abused its discretion in admitting the challenged evidence, i.e., the security tape from the Speedway store located in Greenfield, at trial. However, I write separately to reiterate that I believe that the inevitable discovery rule could apply under both the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution if the State were to demonstrate by a preponderance of the evidence that the challenged evidence would have been discovered but for the unlawful search. The State, however, failed to do so here. * * *

In light of the uncertainty in McNally’s and Siefert’s testimony, any determination that the challenged evidence would inevitably have been discovered is based on supposition and, as such, cannot support a finding to that effect by a preponderance of the evidence. Accordingly, I agree with the majority’s determination that the trial court abused its discretion in admitting the challenged evidence at trial and concur with the conclusion to reverse Gyamfi’s convictions.

NFP civil opinions today (3):

Aubrey Thompson v. State of Indiana (NFP) is a 2-1 NFP opinion on rehearing (Or it it? There is a NFP box, but not a heading reading "MEMORANDUM DECISION ON REHEARING – NOT FOR PUBLICATION) to a June 4th NFP opinion. "We grant the State’s petition for rehearing for the limited purpose of clarifying our analysis in light of Thang v. State, 10 N.E.3d 1256 (Ind. 2014)."

Dolen Glenn v. Indiana Department of Correction (NFP)

In the Matter of the Termination of the Parent-Child Relationship of I.T., S.T., and W.T., minor children, and C.T., Mother, and W.T., Father, et al. v. Indiana Department of Child Services (NFP)

In the Matter of the Termination of the Parent-Child Relationship of D.B., Minor Child, and K.S., Mother, K.S. v. Indiana Department of Child Services, et al. (NFP)

NFP criminal opinions today (8):

Shawnee Wilson v. State of Indiana (NFP)

David J. Heineman v. State of Indiana (NFP)

Marcus J. Schneider v. State of Indiana (NFP)

Kevin I. Colon, Sr. v. State of Indiana (NFP)

Markus Burton v. State of Indiana (NFP)

Jeremy Hall v. State of Indiana (NFP)

Bradley Cochran v. State of Indiana (NFP)

Robert Mular v. State of Indiana (NFP)

Posted by Marcia Oddi on September 4, 2014 10:55 AM
Posted to Ind. App.Ct. Decisions